Table of content

Abstract: In December 2009, the Grand Chamber of the European Court of Human Rights delivered its judgment in Sedjic and Finciv. Bosnia and Herzegovina. This case deals with discrimination in access to the Bosnia’s Parliament and Presidency – both institutio...ns being reserved solely for Serbs, Croats and Bosniaks, excluding all 17 national minorities. The Court found a violation of Article 14 in conjunction with Article 3 of Protocol No. 1 and a violation of Article 1 of Protocol No. 12. The judgment is the first to consider and find a violation of Protocol No. 12 and therefore creates a major precedent. However, despite the efforts of many international and national actors, the involvement of the European Union and the Committee of Ministers, implementation of the judgment has not taken place, due to the prevailing political climate in Bosnia. In February 2010, within the African Union, the African Commission on Human and Peoples’ Rights’ adopted the landmark decision against Kenya in the Endorois case. The first case to recognise indigenous peoples’ rights over their ancestral land, and also the first case adjudicating upon the right to development, it has been widely recognised as a significant development in the advancement of indigenous peoples’ rights in Africa. Yet, some six years later, the decision has yet to be implemented by the Respondent Government, despite considerable efforts by the original complainants at both the international and national levels, and the novel engagement with the Commission. This article will compare and contrast the current and potential role of the African Commission on Human and Peoples’ Rights and the European Court of Human Rights in securing implementation of their decisions. Ultimately, this paper will argue that the procedure in Africa in particular needs to be further developed, and will offer some suggestions for refinement.hide

Abstract: Nancy Fraser argues that the great emphasis that was placed on recognition politics in the field of gender justice at the end of the XXth century benefited neo-liberalism. The consequence was the vulnerability to the free-market fundamentalism. Giv...en this scenario and taken into consideration that gender issues not only originate from recognition deficits but also stem from inegalitarian distribution, thus the proposal is to couple both kinds of perspectives. This framework is useful for posing a new approach to the decision adopted by the Inter-American Court of Human Rights in the Case of Gonzáles et al. (“Cotton Field”) v. México. In this case the Court applied a concept of structural inequality with a focus on cultural factors in order to explain the context of systematic discrimination and widespread violence against women in Ciudad Juárez, despite the fact that the murder victims shared similar relevant characteristics: they were young women, workers/students, poor and/or migrant. We conclude that the analysis made by the Court is insufficient. We therefore propose that the “Cotton Field” judgment should be rewritten in a way that will visibilise that gender inequality is due to the lack of both recognition and redistribution politics.hide

Abstract: The rule of exhaustion of domestic remedies, embedded in generally recognised principles of international law and practice of international human rights courts and other supervisory bodies, is an essential factor of orientation in the complex inter...play of subsidiarity, constitutional legitimacy and effective domestication of human rights law. Setting foreseeable and clear rules about domestic remedies and making the requirement of exhaustion of those remedies stringent and consistent could be a pivotal element in achieving a balance between the expectations of subsidiarity and effective access of individuals to international justice. This article will argue that there are two necessary preconditions for achieving this balance. Firstly, the international human rights courts and other supervisory bodies should make it sufficiently clear what the substantive and procedural requirements of an effective and adequate domestic remedy are, leaving the necessary margin for implementation of those findings to the national authorities; and secondly, they should secure that the national authorities are given opportunity to observe their engagements undertaken by international human rights law by obliging the individuals seeking justice to attempt the use of such remedies at the domestic level. In observing these conceptual prepositions, it will be argued, in particular, that the leading and pilot judgment procedures of the European Court of Human Rights (ECtHR) follow the above-conceived pattern of an effective implementation of international human rights adjudications at the domestic level. It will be then examined to what extent the adjudication practices are implicit in those procedures applicable at the Inter-American level and what relevance they have to the case-law of the Inter-American Court of Human Rights (IACtHR).hide

Abstract: This contribution aims at assessing whether or not, and for what reasons, the concept of the “right to a dignified life” – i.e. the right not to be prevented from having access to minimum living conditions compatible with human dignity – provides a...n appropriate and effective means to address violations of social and cultural rights within the Inter-American System. After presenting the main aspects of the right to live a dignified existence and contextualising it within the jurisprudence of the Inter-American Court on Human Rights (IACtHR) in the area of economic, social and cultural rights (ESC rights), the analysis focuses on the main strengths and weaknesses that, on both a conceptual and a practical level, the approach under examination presents in comparison to a direct approach to ESC rights protection based on Article 26 of the American Convention on Human Rights (ACHR). The conclusion is that, because of its own rationale as a means to guarantee subsistence needs, the right to a dignified life is unable to provide more than a starting point for the protection of social and cultural rights, and that the time has come for the IACtHR to move forward and give proper recognition to the rights in question under Article 26 of the American Convention on Human Rights (ACHR). If not, there is a serious risk that the right to a dignified life becomes a judicial “ failure” story in the field of social and cultural rights protection.hide

Abstract: Stemming from a critical perspective and from in-depth qualitative interviews conducted with family members of the political militants that were killed and forcefully disappeared in the 1970s by the military campaigns of the Brazilian dictatorship ...against the Araguaia Guerrilla movement, the aim of this article is to discuss the impact of the Gomes Lund case in Brazil. In this sense, we present evaluations from family members regarding positive and negative aspects of the Inter American Human Rights System’s actions. Finally, we conclude that the positive effects of the Inter-American Human Rights System’s actions have far surpassed its negative effects or criticizable aspects in the Brazilian context.hide

Abstract: The purpose of this article is to look at the inconsistencies created by the adoption of the Palermo Protocols adopted along with the United Nations Convention against Transnational Organized Crime. The protocols against trafficking and smuggling a...rose from common considerations but are treating the victims differently. Although it is not widely accepted, smuggled migrants are often victims of exploitation, mistreatment and go through unbearable conditions during the crossing. The vulnerability of irregular migrants tends to grow as their journey gets longer and longer. States have intentionally left aside the fact that smuggled persons could also be victims and focused almost entirely on the criminal aspect of transboundary movements of people in the Protocol against Smuggling. The article analyzes the interesting jurisprudence from Canada where the highest tribunal tried to find a balance between security and humanitarian needs of smuggled migrants.hide

Abstract: The article discusses the historical evolution of the legal right to conscientious objection to military service within the key institutions of the Council of Europe. It does so by examining the travaux préparatoires and legislative history of the ...European Convention on Human Rights, focusing on the intention of its drafters to incorporate into the scope of the treaty a right to be exempted from military service on grounds of conscience. It further explores the activities of the Parliamentary Assembly and the Committee of Ministers of the Council of Europe in order to identify whether these bodies intended to expand the scope of the Convention to cover objections of conscience to the undertaking of military duties as a constituent element of Article 9 ECHR, protecting the right to freedom of thought, conscience and religion. Finally, the paper explores the European Court of Human Rights’ jurisprudence on the question of conscientious objection to military service and assesses the importance and impact of Bayatyan v. Armenia, a landmark decision by the Grand Chamber of the European Court of Human Rights which finally placed objections of conscience to military service firmly within the scope of Article 9 of the European Convention on Human Rights.hide

Abstract: This contribution aims to elaborate on the intricate relationship between the Inter-American System for the Protection of Human Rights (IASHR) and those national institutions that reflect the division of powers: the judiciary, legislative power and... executive power. It takes into account the specific functions devoted to the IASHR and the peculiarities of the Latin American context. The author focuses on the impact of the decisions taken both by the Inter-American Court of Human Rights (IACtHR) and the Inter-American Commission on Human Rights (IACmHR) on domestic judges, parliaments and governments, offering a synthetic comparative analysis of the mechanisms used to incorporate international standards at the national level. The article explains how the IASHR affects the abovementioned subjects. The analysis is construed through the paradigms of the ius constitutionale commune of human rights (a project carried out at the Max Planck Institute, Heidelberg) and in particular in the light of two core principles: dialogue and legal pluralism.hide

Abstract: In 2012 the Parliamentary Assembly of the Council of Europe encouraged Member States of the Council of Europe (CoE) to “consider launching the process of drawing up a European convention for the protection of all persons from enforced disappearance..., based on the achievement of the UN Convention”. This article considers the plausibility of such a convention being created in the current political climate, with regard to the resource challenges and structural complexities that exist. It also assesses the existing protections under the International Convention on Enforced Disappearances 2006 and the European Convention on Human Rights (ECHR), and what the benefits of a European-specific convention would be. It finds that a European convention on enforced disappearances is required. It also concludes that Article 2 of the ECHR has a key role to play in challenging enforced disappearances, with or without the proposed convention. It considers how Article 2’s potential has not always been realised by the ECtHR and why issues remain in relation to the Court’s consideration of operations planning and domestic laws regarding enforced disappearances. Nevertheless, it argues that there have been significant and welcomed developments in making the duty to investigate and the requisite standard of proof more accommodating for allegations of enforced disappearances. It concludes that Article 2 offers veiled protection against enforced disappearances in the absence of a European convention and that it would provide valuable support to such a convention post-creation.hide

Abstract: Human rights and democratization have become essential ingredients of the EU’s identity, both internally and externally. In that sense, some commentators have referred to Europe as a normative power. Against this background, the EU is actively prom...oting human rights and democracy in a number of countries through a vast range of policies and programmes. But there are serious concerns about the capacity of the EU to have a significant impact on the democratization processes taking place in different regions of the world. Therefore, some commentators have underlined the delivery gap in the EU human rights and democratization policies, the enormous distance between the rhetoric proclamations in Brussels and the impact on the ground of the EU policies and programmes. The aim of this paper is to shed light on the challenges the EU is facing due to the new international scenario and the progressive decline of Western power.hide